Administration reportedly deems al Shabaab to be an “associated force” of al Qaeda

That is the implication, anyway, of an important story by Charlie Savage, Eric Schmitt and Mark Mazzetti that the New York Times just posted. The story does not actually say, in so many words, that the Administration has deemed Shabaab to be an “associated force” of al Qaeda in the armed conflict with the United States–but that’s the most likely explanation. The President apparently will announce this finding in his Wars Powers Act report to Congress in December.

What this would mean, as a practical matter, is that the government would now have legal authority under the 2001 AUMF to use force against all Shabaab forces, rather than only against those Shabaab members who are also part of al Qaeda itself (which was the government’s working view until recently). Importantly, however, that does not mean that the government will do so, or will treat Shabaab as it treats al Qaeda and the Taliban in Afghanistan. Indeed, the Times story suggests that, at least for now, “the administration intends to continue its strategy in Somalia of primarily helping partner forces battle the Shabab — including carrying out airstrikes to defend them when they get into trouble during missions.” Moreover, the Administration is not declaring Somalia to be an “area of active hostilities” that is exempt from the limitations of the 2013 PPG, “which would free up the American military to carry out airstrikes targeting low-level militants more expansively.”

I hope to have more to say about this development later, and/or as further details are announced. For now, however, I’d just flag a few potentially important questions or quibbles.

1. The Times story suggests that the Administration simply “decided to deem” Shabaab as covered by the AUMF, and that it did so in order “to shore up the legal basis” for the use of force to protect foreign partners from Shabaab attacks. These phrasings unfortunately leave the impression that the decision was made after the fact, and that it involved a simple, discretionary “deeming.” Savage, Schmitt and Mazzetti do not, however, give any reason to believe that Administration officials did anything other than assess the available intelligence to determine if Shabaab now satisfies the test for an “associated force” under the AUMF: i.e., that it must be an organized, armed group that has entered the fight [i.e., the armed conflict confirmed by the AUMF] alongside al Qaeda, and has become a co-belligerent with al Qaeda in hostilities against the United States or its coalition partners. Presumably, the Administration determined that the evidence does satisfy that test, and did so before it used any force that depended upon authorization under the AUMF. (In any event, the Times story offers no reason to think that is not the case.) It remains to be seen how forthcoming the Administration can and will be in disclosing the evidence it now has that presumably supports such a finding, whereas in the past it did not.

2. The story also states that this determination is “part of the Obama administration’s pattern of relaxing various self-imposed rules for airstrikes against Islamist militants as it tries to help its partner forces in several conflicts.” I don’t think that’s right. It’s not a matter of “relaxing” a “self-imposed” rule. Instead, it is an instance of determining that the facts now support invocation of an authority enacted by Congress.

3. The Times story also reports that “[o]ver the past year, the military has routinely invoked a built-in exception to [the 2013 PPG] rules for airstrikes taken in ‘self-defense,’ which can include strikes to help foreign partners even when Americans are not at direct risk.” The writers do not cite any authority for this reported PPG exception. This is something worth keeping an eye on, to see whether the Administration confirms such a PPG exception, and explains its precise parameters.

4. Finally, the story appears to break another important development, as well: It reports that this past summer “the administration deemed Surt, Libya, an ‘area of active hostilities,’ after the Libyan prime minister asked for assistance in dislodging Islamic State militants from that city,” which, if true, would exempt U.S. operations in Surt from the rules of the 2013 PPG–along with operations in Afghanistan, Syria and Iraq. As I’ve previously written, it would behoove the Administration to explain in further detail why operations in these four geographical locations–but not others–are exempt from the PPG, and which, if any, of the PPG procedural and substantive constraints apply in those four places.

About the Author(s)

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).